City Of Fife v. Russell P. Hicks ( 2015 )

FILED
COURT OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OF X 1 T6TON
2015 FEB 24 Ail 9: 24
DIVISION II
STATE OF WASHINGTON
CITY OF FIFE, a Washington municipal Iii. 45450- 5 -
corporation, DEPUTY
Petitioner, PUBLISHED OPINION
v.
RUSSELL P. HICKS,
Respondent.
BJORGEN, J. — On discretionary review, the city of Fife challenges the superior court' s
partial summary judgment order requiring it to provide Fife police officer Russell Hicks with
unredacted copies of requested public records. The records concerned an investigation into
complaints Hicks and another officer made against certain high -ranking Fife Police Department
officials. The City contends that the superior court erred in ordering it to disclose certain
information revealing the identities of witnesses and accused officers, arguing that the redacted
information falls under exemptions in the Public Records Act (PRA), chapter 42. 56 RCW, for
specific investigative information compiled by law enforcement agencies and personal
information in files maintained for public employees. The City further argues that the superior
court erred in ruling that the City violated the PRA by redacting Hicks' s own identifying
information and by not providing the requested materials to Hicks until ordered to do so
following a related, unsuccessful declaratory judgment action by the City. Because the City
failed to raise a genuine issue of material fact as to whether the claimed exemptions apply, we
affirm.
No. 45450 -5 -II
FACTS
In March 2011 Hicks and another Fife police officer submitted a whistleblower complaint
pursuant to chapter 42.41 RCW to Fife City Manager Dave Zabell. The complaint alleged that
certain high- ranking officials in the Fife Police Department had engaged in various types of
misconduct; including racial discrimination in awarding extra compensation to bilingual officers,
retaliation against officers who complained about the alleged discrimination, misappropriation of
public funds to provide bilingual pay to an officer who was not actually bilingual, gender
discrimination and harassment, an improper romantic relationship in the workplace and related
cover -up, and inappropriate relationships with young adult offenders.
The City' s attorney retained an outside entity, The Prothman Company, to .investigate the
allegations. Prothman' s report of its investigation concluded that all the allegations were either
not sustained, meaning "[ t]here [ was] insufficient evidence to prove or disprove the allegation,"
or unfounded, meaning "[ t] he allegation was false or not factual." Clerk' s Papers ( CP) at 372.
The City issued a press release regarding the Prothman report, quoting Zabell' s
statements that Prothman had conducted a " thorough" investigation in a diligent and professional
manner and that Zabell was confident that the investigation had " g[ otten] to the truth" of the
allegations. CP at 181 - 82.
Hicks then submitted a public records request to the City, requesting the following
records related to his whistleblower complaint and the Prothman investigation:
2
No. 45450 -5 -II
1. All final reports made as a result of any investigations into the 2011
Whistleblower Complaint.
2. All audio recordings and accompanying transcripts from interviews
of the [ accused officials and certain named witnesses] made during the
investigation of the 2011 Whistleblower Complaint... .
3. All documents, emails, audio recordings, video, and electronic
messages that were relied on in conducting the investigation.
4. All documents provided to any media regarding the 2011
Whistleblower Complaint, its investigation, and findings arrived at in response to
that Complaint.
CP at 178. In response, the next day the City informed Hicks in writing that, " due to the scope
of his request," it would provide the responsive records in installments. CP at 36 -37. The City
released the first installment to Hicks on May 30, 2012, but redacted from the records provided
all names and identifying information of witnesses, the accused officers, and the complaining
parties and those parties' attorneys. The City released subsequent installments approximately
every three weeks for the next four months.
Six days before releasing the first installment, the City sued Hicks for declaratory and
injunctive relief in superior court. The complaint alleged that the " audio recordings and
transcripts of witness interviews, as well as pre -final report interviewer prepared /involved
documents prepared by Prothman [ sic] ... do not constitute public records," or, in the
alternative, ( 2) were exempt from disclosure pursuant to RCW 42. 56.290, the PRA exception for
attorney work product and communications protected by the attorney- client privilege. The
complaint asked the court to enjoin disclosure and to declare that the materials were not public
records or were exempt from disclosure. The complaint further requested that the court, should
it rule that the materials were nonexempt public records, determine " the extent to which the
names and identifying information of interviewees, witnesses, complainants, and the persons
accused can be redacted. CP at 5.
3
No. 45450 -5 -II
After the City provided the first installment, Hicks filed an answer and counterclaim
alleging that the City violated the PRA by failing to provide all responsive documents and by
filing suit against Hicks. The City moved for an in-camera review of the materials and a
protective order, and Hicks moved to compel production of all records responsive to his request.
The superior court granted Hicks' s motion to compel in part, ordering the City to provide
within 20 days the materials described in the City' s complaint, specifically " all audio and written
interview files and investigator- created documents used for production of" the Prothman report.
CP at 34 -35. The court ruled that the audio recordings qualified as public records and were not
protected from disclosure by the work product rule or the attorney- client privilege. The court
expressly declined to compel production of other materials or to rule on the propriety of the
City' s redactions.
The City provided Hicks with the records identified in the order within the time specified.
As with the previous installments, however, the City redacted any information specifically
identifying witnesses, accused officers, and the complaining parties, including Hicks and his
attorneys. The City also modified the audio recordings so that those interviewed could not be
identified by their voices. Upon providing the final installment, the City stated that it considered
Hicks' s request closed.
The City then moved to voluntarily dismiss its declaratory judgment action and for
summary judgment on Hicks' s counterclaim. The City maintained that, in light of the court' s
ruling on Hicks' s motion to compel, no issues remained before the court concerning the City' s
complaint for declaratory and injunctive relief, and that it could voluntarily dismiss the
complaint as a matter of right. As to the counterclaim, the City argued that it met the time limits
4
No. 45450 -5 -II
imposed by the PRA, that the redactions were proper, and that it had complied with the PRA as a
matter of law.
Hicks moved for partial summary judgment on his counterclaim, asking the trial court to
rule that the City had violated the PRA and to order it to provide unredacted versions of all
responsive records. In response, the City submitted a declaration from one of the accused
officers, Assistant Chief Mark Mears, in addition to other material. Mears opined, based on his
19 years as a law enforcement official, that nondisclosure of the identities of witnesses in an
internal investigation into police misconduct was essential to effective law enforcement, because
witnesses would feel reluctant to cooperate if they knew that anyone could subsequently learn
their identities and what they had said.
After a hearing, the superior court granted Hicks' s motion for partial summary judgment,
ruling that the City violated the PRA by improperly redacting information identifying the
witnesses and most of the accused officers that Prothman had. interviewed. The court' s order
permitted the City to redact only the identities of subjects of unsubstantiated allegations of sexual
misconduct. The court' s oral ruling found a violation of the PRA based on both the length of
time the City took to disclose the records identified in the declaratory judgment action and on the
City' s improper redactions. The court' s remarks at the hearing also suggest that it based its
ruling in part on the views that ( 1) an agency may not redact the requestor' s own name from the
records requested and that (2) the City' s participation in media coverage of the Prothman
investigation and report undermined its claim that the redacted material was exempt from
disclosure. The court reserved ruling on penalties.
Before any hearing on penalties had been scheduled, the City appealed directly to our
Supreme Court, which transferred the case to our court. Concluding that the superior court' s
5
No. 45450 -5 -II
order was not appealable as a matter of right, our court clerk converted the City' s notice of
appeal to a motion for discretionary review, which motion our commissioner granted.
ANALYSIS
After setting forth the standard of review, we first consider whether the superior court
erred in ruling that the redacted material did not fall under the two PRA exemptions invoked by
the City: the investigative records exemption and the exemption for public employees' personal
information. Concluding that the superior court did not err, we then turn to the remaining issues.
I. STANDARD OF REVIEW AND GOVERNING LAW
Under the PRA, municipalities must make all public records available for public
inspection or copying upon request, unless a specific exemption from disclosure applies. RCW
42. 56. 070( 1). "[ S] trong public policy" favors disclosure, and courts must construe the PRA' s
exemptions narrowly. Franklin County Sheriff's Office v. Parmelee, 175 Wash. 2d 476, 479, 285
P.3d 67 ( 2012) ( citing RCW 42. 56. 030), cert. denied, 133 S. Ct. 2037 ( 2013). The agency
claiming the exemption bears the burden of proving that a specific exemption applies. Prison
Legal News, Inc. v. Dep' t of Corrs., 154 Wash. 2d 628, 636, 115 P.3d 316 ( 2005).
An agency may also ask a court to enjoin disclosure of requested records. RCW
42. 56. 540; Soter v. Cowles Publ' g Co., 162 Wash. 2d 716, 751 -52, 174 P.3d 60 ( 2007). The court
may grant the injunction if it finds that an exemption applies and disclosure would clearly not be
in the public interest and would substantially and irreparably damage any person or would
substantially and irreparably damage vital governmental functions. Progressive Animal Welfare
Soc' y v. Univ. of Wash., 125 Wash. 2d 243, 257 -58, 884 P.2d 592 ( 1994).
We review an agency' s denial of the opportunity to inspect or copy public records de
novo. RCW 42. 56. 550( 3). We also review a trial court' s grant of summary judgment de novo,
6
No. 45450 -5 -II
performing the same inquiry as the trial court. Torgerson v. One Lincoln Tower, LLC, 166
Wash. 2d 510, 517, 210 P.3d 318 ( 2009).
A court should grant summary judgment only if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.
CR 56( c). A party moving for summary judgment bears the burden of demonstrating that there
is no genuine issue of material fact. Atherton Condo. Apartment Owners Ass 'n Bd. ofDirs. v.
Blume Dev. Co., 115 Wash. 2d 506, 516, 799 P.2d 250 ( 1990). A material fact is one upon which
the outcome of the litigation depends in whole or in part. Atherton; 115 Wash. 2d at 516.
If the moving party satisfies this burden, the nonmoving party must present evidence
demonstrating that material facts remain in dispute. Atherton, 115 Wash. 2d at 516. If the
nonmoving party fails in this, summary judgment is proper. Vallandigham v. Clover Park Sch.
Dist. No. 400, 154 Wash. 2d 16, 26, 109 P.3d 805 ( 2005). In conducting this inquiry, the court
must consider all facts, and any reasonable inferences that follow from them, in the light most
favorable to the nonmoving party. Vallandigham, 154 Wash. 2d at 26.
II. THE PRA EXEMPTION FOR SPECIFIC INVESTIGATIVE RECORDS DOES
NOT APPLY TO THE REDACTED MATERIAL
The City first contends that it properly redacted information identifying witnesses and
accused officers under RCW 42. 56. 240( 1), which exempts from inspection or copying
specific investigative records compiled by investigative, law enforcement, and penology
agencies ... the nondisclosure of which is essential to effective law enforcement or for the
protection of any person' s right to privacy.
Br. of Petitioner at 12. To successfully invoke the investigative records exemption, which aims
to protect the integrity of law enforcement investigations," an agency must establish that the
requested record ( 1) is investigative in nature, ( 2) was compiled by an investigative, law
7
No. 45450 -5 -II
enforcement, or penology agency, and is either (3) essential to law enforcement or (4) essential
to the protection of a person' s right to privacy. Koenig v. Thurston County, 175 Wash. 2d 837, 843,
287 P.3d 523 ( 2012). The parties dispute all of these elements, and we consider each in turn.
A. The Records Are Specific Investigative Records
Hicks contends that the redacted records do not qualify as specific investigative records,
because the Prothman investigation primarily concerned ordinary personnel issues, not crimes.
We disagree.
Our Supreme Court has held that records " compiled as a result of a specific investigation
focusing with special intensity upon a particular party" qualify as " specific investigative records"
under RCW 42. 56. 240( 1). Koenig, 175 Wash. 2d at 843 ( internal quotation marks omitted).
Specifically, an investigation " designed to ferret out criminal activity or to shed light on some
other allegation of malfeasance" falls within the scope of the exemption.; Columbian Publ' g Co.
v. City of Vancouver, 36 Wash. App. 25, 31, 671 P.2d 280 ( 1983).
The allegations at issue here included inappropriate relationships with offenders,
including intimate touching, misappropriation of public funds, and employment discrimination
based on sex and ethnicity. Hicks made these allegations against particular parties. Thus, the
Prothman investigation " focus[ ed] with special intensity upon a particular party," Koenig, 175
Wash. 2d at 843, and aimed to " shed light on some ... allegation of malfeasance," Columbian
Publishing, 36 Wn. App. at 31. Under these principles, the records qualify as specific
investigative records.
Hicks attempts to escape this conclusion based on two opinions of our court, Columbian
Publishing, 36 Wash. App. 25, and Ames v. City ofFircrest, 71 Wash. App. 284, 857 P.3d 1083
1993). Neither authority supports Hicks' s argument.
8
No. 45450 -5 -II
Columbian Publishing involved records related to a city manager' s investigation into
complaints from police officers that their police chief treated them with disrespect, lacked
communication and management skills, and had " alienated other law enforcement agencies." 36
Wash. App. at 27. We held that the records did not qualify as specific investigative records
because the allegations involved " purely a personnel matter." 36 Wn. App. at 31. In contrast,
the allegations here went well beyond personnel matters, reaching into claims of malfeasance or
violations of law. Columbian Publishing, thus, has little bearing on the resolution of this case.
Ames involved records related to an internal investigation into " alleged improprieties" by
three high -ranking police officers. 71 Wash. App. at 286 -87. The court held that the investigative
records exemption did not apply, but not for the reason Hicks asserts. On the contrary, the court
expressly noted that " Ames made a sufficient showing to establish" that the records qualified as
specific investigative records." 71 Wash. App. at 294.
More to the point, a number of other cases have treated materials concerning internal
investigations into police misconduct as investigative records under the PRA. E.g., Bainbridge
Island Police Guild v. City of Puyallup, 172 Wash. 2d 398, 419, 259 P.3d 190 ( 2011); Cowles
Publ' g Co. v. State Patrol, 109 Wash. 2d 712, 729, 748 P.2d 597 ( 1988) ( involving the PRA' s
predecessor statute). In addition, after the parties submitted their briefing in this case, our
Supreme Court clarified that records of internal police investigations qualify as specific
investigative records under the PRA, even though "[ t] he main purpose of the internal
investigation is to reach an internal disciplinary remedy for proved misconduct." Sargent v.
Seattle Police Dep' t, 179 Wash. 2d 376, 392 -93, 314 P.3d 1093 ( 2013).
9
No. 45450 -5 -II
The Prothman investigation focused with special intensity on allegations of malfeasance
by particular parties. Under these precedents, the materials qualify as specific investigative
records.
B. The Records Were Compiled by a Law Enforcement Agency
Hicks next contends that the specific investigative records exemption does not apply to
the Prothman materials because a law enforcement agency did not " compile" them. Br. of
Resp' t at 20 -21. Hicks bases this argument chiefly on Zabell' s declaration that an outside
attorney retained by the City' s insurer hired Prothman, and that "[ n] either [ Zabell] nor any of
his] staff reviewed, evaluated, received or used any part of the" Prothman materials other than
the final report. CP at 31 -32.
The record establishes that Zabell acted in his capacity as supervisor of the police
department in initiating the investigation. Zabell sent letters to members of the police
department stating, for example, that " the City has decided to conduct an internal investigation"
into Hicks' s allegations, that "[ a] ny violation of the directives contained in this memo will be
considered insubordination," and that "[ t] he City has retained [ Prothman' s investigator], a
former police chief for another City, to conduct the investigation and report back to [ Zabell]."
CP at 463 -66. These circumstances establish that Prothman acted as Zabell' s or the City' s agent
or subagent with actual authority to conduct the investigation. RESTATEMENT ( THIRD) OF
AGENCY §§ 2. 01, 3. 15 ( 2005). Thus, Prothinan' s creation and retention of the materials is
attributable to Zabell, acting in his capacity as supervisor of the police department. See
Dickinson v. Edwards, 105 Wash. 2d 457, 466, 716 P.2d 814 ( 1986); Busk v. Hoard, 65 Wash. 2d 126,
134 -35, 396 P.2d 171 ( 1964).
10
No. 45450 -5 -II
This conclusion is directly buttressed by City of Tacoma v. Tacoma News, Inc., 65 Wn.
App. 140, 144 & n. 3, 827 P.2d 1094 ( 1992), which held that under the predecessor to the PRA
t] he disputed documents [ were] specific investigative records compiled by a law enforcement
agency" because " it [was] apparent that the letters were received and retained in connection with
the investigation." The court specified further that "[ t] he location in which the letters were
physically filed or retained is one factor to look at, but is not by itself dispositive." Tacoma
News, 65 Wn. App. at 144 n. 3. As in Tacoma News, the record here makes clear that the city
manager, or a party whose conduct was attributable to him, acting as supervisor of the police
department, " received and retained" the Prothman materials, " in connection with the
investigation." 65 Wash. App. at 144 n. 3.
The fact that the City' s agent or subagent conducted the investigation and compiled the
records rather than city officials is immaterial. RESTATEMENT ( THIRD) OF AGENCY § 3. 15, at
289 -90 cmt. d. ( 2005). The fact that the records were not physically located in the City' s files is
not dispositive. Tacoma News, 65 Wash. App. at 144 & n. 3. The records were compiled by a law
enforcement agency for purposes of the investigative records exemption.
C. The City Failed To Raise a Genuine Issue of Material Fact as to Whether Nondisclosure
of the Redacted Material Is Essential to Effective Law Enforcement
The City contends that nondisclosure of the identifying information redacted from the
Prothman materials was essential to effective law enforcement. The City argues that it submitted
uncontroverted evidence," in the form of a declaration from Assistant Chief Mears, one of the
accused officers, that "`` [ i]t is essential to law enforcement' s ability to conduct thorough and
complete investigations that complainants, witnesses, and interviewees can rely on being able to
speak freely ... with the knowledge that their identities will be protected.'" Br. of Petitioner at
15, 18 ( quoting CP at 286).
11
No. 45450 -5 -II
The City bases its argument on two precedents, Cowles Publishing, 109 Wash. 2d 712, and
Tacoma News, 55 Wash. App. 515. Neither case, however, supports the City' s position.
To begin with, only four justices signed the lead opinion in Cowles, 109 Wash. 2d 712, 733,
so its language alone has little precedential value. In re Pers. Restraint ofIsadore, 151 Wash. 2d
294, 302, 88 P.3d 390 ( 2004) ( " A plurality opinion has limited precedential value and is not
binding on the courts. "). Further, if there is no majority agreement as to the rationale for a
decision, ' the holding of the court is the position taken by those concurring on the narrowest
grounds. ' W.R. Grace & Co. v. Dep' t ofRevenue, 137 Wash. 2d 580, 593, 973 P.2d 1011 ( 1999)
quoting Davidson v. Hensen, 135 Wash. 2d 112, 128, 954 P.2d 1327 ( 1998)).
In Cowles, the trial court heard testimony specifically addressing the facts of that case
from numerous law enforcement and expert witnesses and found, based on that testimony, that
nondisclosure of the identities of officers subject to the internal police investigations at issue was
essential to effective law enforcement. Cowles, 109 Wash. 2d at 715 -18. The plurality agreed.
Cowles, 109 Wash. 2d at 729. Justice Anderson, concurring in the result, expressly disagreed with
the plurality' s view of the law, but felt constrained by the trial court' s factual findings. Cowles,
109 Wash. 2d at 733 -34. In fact Justice Anderson noted that, although " the public disclosure act
opens the public record doors much wider to the press and the public than the majority of the
court is willing to concede[, i] n the case at bench ... I am constrained by the trial court' s
findings." Cowles, 109 Wash. 2d at 733 -34.
Thus, Cowles serves as binding precedent only for the proposition that, where a trial court
finds, based on substantial evidence, that nondisclosure is essential to effective law enforcement,
an appellate court may not substitute its own view for that of the trial court. See Ames, 71 Wn.
App. at 294 -95. Indeed, shortly after it was decided, our Supreme Court distinguished Cowles
12
No. 45450 -5 - I1
and declined to hold that nondisclosure of a liquor control board' s investigation into a bachelor
party held at the Spokane Police Guild was essential to effective law .enforcement:
Unlike Cowles Pub 'g, which was recently before us, no testimony was taken at the
trial court level in this case and there is no finding by the trial court that
nondisclosure is essential to effective law enforcement.
Spokane Police Guild v. Liquor Control Bd., 112 Wash. 2d 30, 37, 769 P.2d 283 ( 1989). Thus,
Cowles does not establish that the trial court here erred in declining to rule, despite Mears' s
declaration, that nondisclosure was essential to effective law enforcement.
Tacoma News helps the City even less. First, the opinion relies heavily in its analysis on
the reasoning of the plurality opinion in Cowles, without addressing that opinion' s lack of
precedential value. Tacoma News, 55 Wash. App. at 521 -22. Furthermore, the court expressly
limited its holding to the facts of that case: " We hold that the legitimate concern for protecting
confidential sources of information makes nondisclosure of the Health Department' s sources in
this case essential to effective law enforcement." Tacoma News, 55 Wash. App. at 523 ( emphasis
added.)
Most importantly, the Tacoma News court expressly rejected the proposition that a
generalized fear that disclosure of witness names will chill cooperation with investigations,
standing alone, establishes that nondisclosure of identifying information is essential to effective
law enforcement:
The Health Department' s affidavits indicate that the witnesses in the investigation
provided information voluntarily, but would not have done so without assurances
of confidentiality. David Potter, president of the Pierce County Paramedics
Association, opined in his affidavit that " the identifying details and names of the
people who are involved in this case as complainants and witnesses should not be
made public" due to fears of " ostracism or retaliation." Though such fears alone
do not make nondisclosure ofthe information essential to effective law enforcement,
we recognize that disclosing sources in sensitive cases effectively would dilute law
enforcement investigations.
13
No. 45450 -541
Tacoma News, 55 Wn. App. at 522 ( emphasis added). Not only does this fail to support the
City' s contention that the trial court here erred, it suggests that the generalized concerns
expressed in Mears' s declaration were insufficient to establish that nondisclosure was essential to
effective law enforcement.
Our Supreme Court recently confirmed that a generalized contention that disclosure of
identifying information would have a chilling effect on future witnesses is not sufficient to
trigger the RCW 42. 56. 240( 1) exemption. Sargent, 179 Wash. 2d at 395. The Sargent court held
that Division One of our court had erred by remanding that case to the trial court so that the
Seattle Police Department could present more evidence that nondisclosure of witness identities
was essential to effective law enforcement:
At the show cause hearing, the [ Seattle Police Department] clearly understood that
it needed to come forward with specific evidence of chilled witnesses or other
evidence of impeded law enforcement.... But, as both the trial court and Court of
Appeals recognized, the [ Seattle Police Department] made no actual showing that
redaction of witness names was essential to effective law enforcement in this
particular case. A general contention of chillingfuture witnesses is not enough to
exempt disclosure. A remand to give the [ Seattle Police Department] another
opportunity to make the showing required to trigger the exemption is unwarranted.
Sargent, 179 Wash. 2d at 395 ( emphasis added).
Mears' s declaration says nothing specific about the facts of the case. It asserts only that
disclosure of witness identities could make conducting various types of investigations more
difficult in the future because people would be less likely to voluntarily cooperate or come
forward with information. This is just the kind of generalized contention of chilling future
witnesses that the Sargent court held insufficient. Sargent, 179 Wash. 2d at 395.
Once Hicks moved for summary judgment and established that the Prothman materials
were presumptively subject to disclosure, the City, as the nonmoving party, bore the burden of
coming forward with some evidence establishing a factual dispute as to whether nondisclosure
14
No. 45450 -5 - II
was essential to effective law enforcement. Atherton, 115 Wash. 2d at 516; see also Ames, 71 Wn.
App. at 296 ( noting that " Ames had the burden, both as the party claiming the exemption from
disclosure and as the responding nonmovant at summary judgment, to present evidence sufficient
to establish a prima facie case that nondisclosure was essential to effective law enforcement ").
The only evidence the City presented consisted of a declaration from Mears, one of the accused
officers, alleging matters insufficient as a matter of law to establish the necessary proposition.
Therefore, the trial court did not err in its view that the effective law enforcement prong of the
investigative records exemption did not apply.
D. The City Failed To Raise a Genuine Issue of Material Fact as to Whether Nondisclosure
of the Accused Officers' Identifying Information Is Essential To Protect a Person' s
Privacy
As noted, RCW 42. 56. 240( 1) exempts specific investigative records compiled by law
enforcement from disclosure if nondisclosure is " essential to effective law enforcement or for the
protection of any person' s right to privacy." Having held the material at issue is not essential to
effective law enforcement, we turn to the remaining inquiry: whether nondisclosure is essential
to protection of the right to privacy. The City argues only that nondisclosure of the accused
officers' identifying information is necessary to protect .their privacy under this exemption.
The PRA defines an invasion of the right to privacy as follows:
A person' s " right to privacy," " right of privacy," " privacy," or " personal privacy," as these
terms are used in this chapter, is invaded or violated only if disclosure of information about
the person: ( 1) Would be highly offensive to a reasonable person, and ( 2) is not of
legitimate concern to the public.
RCW 42. 56. 050. Because we hold that the identities of the accused officers are of legitimate
concern to the public, we do not decide whether their disclosure would be highly offensive to a
reasonable person.
15
No. 45450 -5 -II
The City maintains that the public has no legitimate concern with the identities of
officials subject to unsubstantiated allegations, regardless of the nature of the accusation. In
Bellevue John Does 1 - 11 v. Bellevue School District No. 405, 164 Wash. 2d 199, 221, 189 P.3d 139
2008), the court held that "[ w]hen an allegation is unsubstantiated, the teacher' s identity is not a
matter of legitimate public concern." The Bainbridge Island Police Guild court, however,
characterized that holding as follows: " In Bellevue John Does, we held that the public has no
legitimate interest in finding out the identity of someone accused of an unsubstantiated allegation
of sexual misconduct." Bainbridge Island Police Guild, 172 Wash. 2d at 415. Thus, Bellevue John
Does does not compel the conclusion that the identities of the accused officers are exempt from
disclosure.
In addition, the public arguably has much more reason to legitimately concern itself with
the conduct of high- ranking police department officials than with rank- and -file officers. In
Morgan v. City of Federal Way, 166 Wash. 2d 747, 756, 213 P.3d 596 ( 2009), the court held that
allegations of misconduct against a judge were not exempt from disclosure as being highly
offensive. In reaching this conclusion, the court relied in part on the fact that " Judge Morgan
also fails to demonstrate how his behavior in the workplace is not of legitimate concern to the
public," noting that " the public has a substantial interest in disclosure of information related to an
elected official' s job performance." Morgan, 166 Wash. 2d at 756 -57. While the officials at issue
here were not elected, their conduct in the performance of their official duties is of similar
significance to the residents of Fife.
In holding that the privacy exemption did not apply, the Morgan court also noted that the
allegations at issue were not entirely unsubstantiated. 166 Wash. 2d at 756. Similarly, while the
Prothman report found all of the allegations at issue here " not sustained" or " unfounded," the
16
No. 45450 -5 - II
investigation actually confirmed many of the factual assertions underlying the allegations. CP at
372 -76, 382 -85. For example, the report.concluded that certain remarks made by one officer
accused of gender discrimination were " inappropriate," but did not sustain the allegation because
the inappropriate comments " were not made exclusively about one particular race or gender
group." CP at 376.
The report found a number of other allegations as " not sustained," even though the events
described in Hicks' s complaint admittedly occurred, because witnesses attributed the alleged
misconduct to mistakes or misunderstandings, and Prothman' s investigator found insufficient
evidence that the accused officers acted with improper motive or intent. For example, one set of
allegations involved the claim that an officer who could not effectively communicate in Spanish
had nonetheless received extra " bilingual pay" for Spanish language proficiency, while two other
officers who were actually fluent in Spanish did not receive the extra pay. The Prothman report
found the allegations not sustained because the officer accused of making the improper decisions
on extra pay told the investigator that, at the time he made the decisions, he believed that the
subordinate officer who received the extra pay could speak Spanish and that the other two
officers could not.
Another series of allegations was based on Hicks' s claim that a supervisor had
improperly denied a subordinate officer the opportunity to teach a course at the Fife Police
Reserve Academy and then lied to the subordinate about the reasons for the decision. The
Prothman report similarly concluded that these allegations were not sustained because the
supervisor told Prothman' s investigator that he believed at the time that only an attorney could
teach the course.
17
No. 45450 -5 - II
Hicks' s whistleblower complaint also alleged that a certain officer had in- custody
offenders brought to his office for private meetings and maintained an ongoing friendship with at
least two known offenders whom the officer had met for lunch and hired to perform home
repairs. The Prothman report likewise found these allegations not sustained, even though the
accused officer admitted that the contacts with the offenders had occurred more or less as
described, because no evidence, showed that those contacts served anything other than an
appropriate official purpose.
Thus, even though the Prothman report concluded that all of the allegations were either
unfounded or not sustained, the investigation in fact confirmed that many of the events described
had actually occurred. Those allegations, furthermore, concerned the official conduct of high -
ranking police officials, inherently a matter of greater interest to the public than, for example,
allegations of misconduct by rank- and -file officers.
Under these circumstances, the identities of the accused officers qualify as a matter of
legitimate public concern. The trial court, therefore, did not err in declining to rule that
nondisclosure was essential to protect the accused officers' privacy.
III. THE PRA EXEMPTION FOR PERSONAL INFORMATION IN FILES MAINTAINED
FOR PUBLIC EMPLOYEES DOES NOT APPLY TO THE REDACTED MATERIAL
The City also contends that nondisclosure of the accused officers' identifying information
falls under the PRA exemption for "[ p] ersonal information in files maintained for employees,
appointees, or elected officials of any public agency to the extent that disclosure would violate
their right to privacy." RCW 42. 56. 230( 3). The right to privacy is defined in the same way for
this exemption as for the exemption discussed above for specific investigative records. See
RCW 42. 56. 050. As just concluded, disclosure of the identities of accused officers would not
18
No. 45450 -5 - II
offend their right to privacy under the investigative records exemption. Therefore, the same
disclosure would not offend the same rights for purposes of the exemption in RCW 42. 56. 230( 3).
IV. THE CITY DID NOT SHOW ANY PRA EXEMPTION ALLOWING IT TO REDACT HICKS' S OWN
IDENTIFYING INFORMATION'
The City supports its redaction of Hicks' s own identifying information by pointing out
that the PRA prohibits agencies from distinguishing among requestors, RCW 42. 56. 080, and
argues this allows it to redact even the requestor' s own name if an exemption applies. A rule
prohibiting redaction of the requestor' s own name, however, would not on its face require
agencies to distinguish among requestors, since all requestors would be entitled to their own
identifying information. The key inquiry, rather, is whether any exemption to disclosure allows
the City to redact this material.
The City bears the burden of proving that a specific PRA exemption applies. Prison
Legal News, 154 Wash. 2d at 636. It has failed to show that any exemption allows it to redact
Hicks' s own identifying information.' We thus reject the City' s argument that the trial court
erred in requiring disclosure of Hicks' s identity as the requestor.
V. THE EFFECT OF THE CITY' S DECLARATORY JUDGMENT ACTION '.
The City contends that the trial court erred in ruling that it violated the PRA by not
providing the Prothman materials to Hicks until ordered to do so following the City' s
Because we hold that no PRA exemption applies, we need not reach Hicks' s argument that the
City waived the accused officers' right to privacy by discussing the Prothman report with the
media.
2 In rejecting a claim that the PRA exemption for specific investigative records applied to an
internal police investigation, the Sargent court appeared to consider the identity and knowledge
of the requestor. Sargent, 179 Wash. 2d at 392 ( noting that " the [ Seattle Police Department]
refused to disclose the entire internal investigation file, even though Sargent already knew that
Waters was the subject of the investigation and was seeking more than witness names ").
19
No. 45450 -5 - II
unsuccessful declaratory judgment action.3 Related to this is the question whether the City must
pay the reasonable costs and attorney fees Hicks incurred in defending against the City' s
declaratory judgment action and a statutory penalty under RCW 42. 56. 550( 4).
Public agencies are authorized by RCW 42.56. 540 to bring actions to enjoin the
disclosure of requested documents. The City' s declaratory judgment action was of this nature
and was authorized by the PRA.
RCW 42. 56. 550( 4), however, provides that
a] ny person who prevails against an agency in any action in the courts seeking the
right to inspect or copy any public record or the right to receive a response to a
public record request within a reasonable amount of time shall be awarded all costs,
including reasonable attorney fees, incurred in connection with such legal action.
In addition, it shall be within the discretion of the court to award such person an
amount not to exceed one hundred dollars for each day that he or she was denied
the right to inspect or copy said public record.
The City' s suit qualified as " an action in the courts," and Hicks sought " to inspect or copy [ a]
public record." RCW 42. 56. 550( 4). Further, this statute expressly authorizes the award of daily
fines for each day the requestor was denied the right to inspect. Thus, proceeding under RCW
42. 56. 540 does not insulate the agency from responsibility for delay up to the time the
declaratory judgment action is decided. Rather, it commences responsibility from the denial of
the right to inspect. This statute also plainly entitles Hicks to costs and attorney fees in
defending against the declaratory judgment action.
3 At oral argument in our court, the City for the first time asserted that the trial court' s ruling on
Hicks' s motion to compel in the declaratory judgment action is not properly before us because
the commissioner' s ruling granting review applied only to the trial court' s decision concerning
the City' s subsequent redactions. Wash. Court of Appeals, City ofFife v. Hicks, No. 45450 -5 -II,
oral argument ( Sept. 3, 2014), at 30 min., 30 sec. ( on file with court). However, the appeal
before us is of the trial court' s order on summary judgment holding that the redactions violated
the PRA. Those issues are within the scope of the grant of discretionary review. Ruling
Granting Review, City of Fife v. Hicks, No. 45450 -5 - II (Wash. Ct. App. March 4, 2014). The
status of the ruling on the prior motion to compel therefore has no bearing on this appeal.
20
No. 45450 -5 - II
The City attempts to avoid this conclusion by describing its suit as a good faith attempt to
determine whether the records were exempt and points out that it disclosed all responsive records
within the time it had originally estimated. These matters, though, do not bear on the precise
issue.
Our Supreme Court, in rejecting an argument that agencies could not initiate declaratory
judgment actions under the PRA, expressly relied on the fact that, if an agency did so and lost, it
would be liable for the requestor' s costs and fees:
The Spokesman- Review offers several policy arguments as to why it believes agencies
should not be permitted to initiate review by a superior court. For example, The
Spokesman- Review asserts that agencies will be encouraged to haul records requesters, who
are unable to afford to defend themselves, into court. However, a public records requester
who does not wish to engage in a court battle could simply withdraw the public records
request, making the agency' s action moot. In addition, the requester could move for
voluntary dismissal of the action if he or she no longer seeks access to the public record.
CR 41( a). Withdrawing the record request is not significantly different from deciding to
no longer pursue access to the record. Thus, we perceive no chilling effect on record
requesters. And the Court of Appeals noted, ifa record requester chooses to move forward
and prevails, he or she would recover all costs and reasonable attorney fees RCW
42. 56. 550( 4).
Soter, 162 Wash. 2d at 753 n. 16 ( emphasis added). The Soter court went onto explain that " the
advantage to going to court is that the agency can obtain quick judicial review, curbing, but not
eliminating, the accumulation of the per diem penalties." 162 Wash. 2d at 756. Soter establishes
that, by prosecuting an unsuccessful declaratory judgment action, the agency becomes liable for
the requestor' s reasonable costs and attorney fees. The City' s unsuccessful declaratory judgment
action entitled Hicks to costs and fees. We leave it to the trial court to determine the amount of
the penalty under RCW 42. 56. 550( 4) on remand.
VI. ATTORNEY FEES ON APPEAL
As the prevailing party, RCW 42. 56. 550( 4) also entitles Hicks to reasonable costs and
fees incurred on appeal. Resident Action Council v. Seattle Hous. Auth., 177 Wash. 2d 417, 447,
21
No. 45450 -5 - II
327 P.3d 600 ( 2013). Hicks has complied with the procedural requirements of RAP 18. 1( b), and
we grant his request in an amount to be set by a commissioner of our court. RAP 18. 1( f).
CONCLUSION
The City failed to present any evidence establishing a material, factual dispute as to
whether the claimed exemptions apply to the identifying information redacted from the Prothman
materials. Therefore, we affirm the trial court and award Hicks costs and reasonable attorney
fees incurred on appeal.
We concur:
C,
HANSON, C. J. k•
22